The Parliament of Canada is currently debating a controversial bill which would amend Canada’s laws on prostitution. At the root of the controversy is a debate over whether sex is a legitimate transaction that can be bought, sold, and profited from. Proponents of the bill see prostitution as inherently exploitative or otherwise undesirable, and those that sell sex as victims. The bill would make the purchase of sex a crime, with jail and/or hefty fines as the punishment, and would also provide some funding for organizations aimed to help women who wish to exit prostitution.
Can sex be legitimate work? The debate continues over a grey area in Canadian law. Prostitution per se is not, and has never been, illegal; however, many practices related to it are indeed against the law. Bawdy houses and brothels (which are defined as any location occupied for the purpose of exchanging sex for money) are verboten under the Criminal Code, as is public solicitation for sexual services, and one is not allowed to make a living off of somebody else’s prostitution.
Sex worker advocates have long had issues with this portion of the Criminal Code, and recently launched a lawsuit. In 2013, the Supreme Court of Canada held unanimously in the case Bedford v. Canada that the current law was unconstitutional, and gave the government one year to amend the law. The rationale for this decision was that if prostitution is legal, then sex workers have a Charter right to protect their own safety. However, the current law allows prostitution while banning the least dangerous form of it (indoors, in a place the sex worker is familiar with), and also prevents the hiring of a guard (that would be living off the avails). Therefore, the law as it stands is a Charter violation.
In June of this year, Attorney-General Peter Mackay introduced the Protection of Communities and Exploited Persons Act in response to the Supreme Court decision. This bill promotes a “demand criminalization” model where it is a crime to purchase sex but not to offer it (viewing the sex workers themselves as victims), with the goal of abolishing prostitution. The “living off the avails” clause will now distinguish guards and exploiters – you will now only be convicted if you make a living by exploiting someone else’s prostitution. Soliciting will remain illegal only if it takes place in a public space where minors are likely to be present. The government also committed $20 million to programs aimed at helping those who wish to exit prostitution.
Joy Smith, a Conservative MP who has spent the majority of her political career advocating for victims of sex trafficking, supports the abolition of prostitution on the grounds of justice. In her opinion, prostitution is strongly linked to sexual trafficking, or the forcing of people into sexual work under duress, often across borders. It is therefore imperative to do what we can to limit the scale of prostitution. Citing evidence from a German study, she believes that if the practice is made legal, there will be an inevitable increase in trafficking of women. Trafficking for the purposes of sex is a serious injustice that has been referred to as “modern day slavery”.
Fellow MP Michelle Rempel provides feminist grounds for supporting demand criminalization. She sees prostitution as an inherently exploitative and demeaning of women – the act of purchasing sex, in and of itself, is an act of violence which must be suppressed. In her opinion, coercion and threats of violence are so common that many sex workers are under duress, and cannot legitimately give consent to sex. The purchase of sex therefore resembles rape and can be treated as criminal.
Many opponents of the bill are in favour of legalizing prostitution rather than making it a criminal act. This includes many sex workers’ organizations, such as PEERS in Victoria, PACE in Vancouver, Maggie’s in Toronto, and Stella in Montréal. While not denying that trafficking occurs, some people willingly become sex workers – many simply cannot find another way to make a living. Therefore, there needs to be a distinction made between those who are trafficked into sex work and those voluntarily enter it. Many of the latter do not appreciate being treated as victims, because they believe they have agency and can legitimately consent to the sale of sex. Sex worker organizations largely oppose the bill on the grounds of safety – they do not believe prostitution can ever be abolished by law, and criminalizing the purchase of sex, even if they’re not the ones who are targeted by the law, will make their work more dangerous. For example, some sex workers currently require their clients to provide them with name and identification in advance, so they can screen them to see if they are dangerous, before consenting. If purchase of sex becomes a crime, this screening would become more difficult if not impossible.
Some groups, while not supporting legalized prostitution, still believe that the current bill is flawed. The Canadian Federation for University Women does not believe the bill goes far enough to protect sex workers – as currently written, they can still be arrested if they solicit for sex near schools or other places where minors might be present. Since there have been cases where minors are coerced into prostitution, there is a case that the “no soliciting near minors” clause would just target the most vulnerable sex workers out there. Also, the $20 million has been criticized for being nowhere close to enough funding to help vulnerable people exit prostitution.
Finally, there is a worry that the bill as currently written might not even be constitutional. It contains several provisions similar to the ones the Supreme Court rejected last year – while the soliciting and living off the avails provisions have been modified, the fact that many sex workers still feel that their safety is being infringed will likely lead to another court challenge. Perhaps we will be back to the drawing board in a few years, should the bill be declared unconstitutional.
Currently, the governing Conservative Party supports the bill, while all the opposition parties are against it. As the Tories hold majorities in both houses of Parliament, it is expected that the Protecting Communities and Exploited Persons Act will be passed into law. But Canadians are still divided on the issue, and another battle in the courts is expected if indeed the bill becomes law. The debate on whether sex workers should be treated as victims of exploitation or legitimate workers, or something in between, will not go away anytime soon.
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